A Fragment on Government

FragmentCopyright © Jonathan Bennett 2017. All rights reserved
[Brackets] enclose editorial explanations. Small ·dots· enclose material that has been added, but can be read as though it were part of the original text. Occasional •bullets, and also indenting of passages that are not quotations, are meant as aids to grasping the structure of a sentence or a thought. Every four-point ellipsis . . . . indicates the omission of a brief passage that seems to present more difficulty than it is worth. Longer omissions are reported between brackets in normal-sized type. —For more intensive study of this work, go to the edition of it by J.H.Burns and H.L.A.Hart (Athlone Press). Some of their footnotes will be borrowed in the present version, acknowledged by the label ‘B&H’. —A small volume published by Cambridge University Press, with an Introduction by Ross Harrison, contains the Fragment and sections III and IV of the Preface written for the second edition.
First launched: 2020
Contents
Chapter 3: British Constitution 36
Chapter 4: Right of the Supreme Power to Make laws 43
Chapter 5: Duty of the Supreme Power to Make laws 54
Appendix: Preface written 46 years later 60
A Fragment on Government Jeremy Bentham
Glossary
affection: In the early modern period, ‘affection’ could mean ‘fondness’, as it does today; but it was also often used, as it is in this work, to cover every sort of pro or con attitude—desires, approvals, likings, disapprovals, dislikings, etc.
censure: In one remark (not included is this version) Ben- tham says he is using this word in a ‘neutral’ sense, in which to ‘censure’ something is to look at it with a critical eye, not necessarily unfavourably, this being the role of the ‘censor’ announced on page 3. Most of his uses of it in this work seem to give it the meaning that we do, which is not neutral; but the neutral meaning may sometimes be hovering in the background.
endowment: Personal quality.
harmful(ness): Used throughout to replace Bentham’s ‘mischievous(ness)’. See entry below on mischief.
invidious: quarrel-producing.
juncture: ‘a joint, a junction’ (OED) in the course of events.
method: In a few places Bentham uses ‘method’ in the sense of ‘system of classification’.
mischief: This meant ‘harm, hurt, damage’—stronger and darker than the word’s meaning today.
of course: On page 22 Bentham takes this to mean what we would mean by ‘as a matter of course’. That was a standard meaning of the phrase in his day.
party: Bentham regularly uses ‘the party’ to mean ‘the individual or group of individuals’. In assessing some action by a government, the ‘party’ whose interests are at stake could be you, or a political party, or the entire community.
peculiar: This usually meant ‘pertaining exclusively to one individual’; but Bentham often uses it to mean ‘pertaining exclusively to one kind of individual’.
perfect: Often used here with the same sense that we give it. But in much of chapter 1, starting on page 18, it probably has its older meaning of ‘complete’; similarly ‘perfectly’/‘completely’.
science: In early modern times this word applied to anybody of knowledge or theory that is (perhaps) axiomatised and (certainly) conceptually highly organised.
sentiment: For Bentham a sentiment could be a feeling or an opinion. In this version, where it clearly means ‘feeling’ it is replaced with that word. In other occurrences, it is allowed to stand, leaving it to you to pick.
sinister: Of the various inter-related senses that the OED gives for this word, the one that seems to fit best with Bentham’s usage is ‘suggestive of evil or malice’. The phrase ‘sinister interest’ now a technical term in legal theory, was first used by Bentham.
synopsis: Used here in its now-rare sense of ‘general view or prospect’ (OED).
tendency: Likely consequences.
Preface
The age we live in is a busy one in which knowledge is rapidly advancing towards completion. In the natural world, especially, everything teems with discovery and improvement. The a most distant and little-known regions of the earth traversed and explored—the b all-vivifying and subtle element of the air so recently analysed and made known to us—are striking evidences, were all others lacking, of this pleasing truth.1
Corresponding to discovery and improvement in the natural world is reformation in the moral world, if the common view that in the moral world there is no longer anything to discover is true. But perhaps it is not true; perhaps among the best grounds for reformation are some observations of matters of fact which—having previously been noticed either incompletely or not at all—would when produced seem able to count as discoveries. An example is this fundamental axiom:
It is the greatest happiness of the greatest number that is the measure of right and wrong;
because its consequences have until now been developed with so little method and precision.
Be that as it may, if it is possible to make (and useful to publish) discoveries in the natural world, surely it is not much less possible to make (and useful to propose) reformation in the moral world. If it is important and useful to us to be made acquainted with distant countries, surely it is not much less important and useful to us to be made better and better acquainted with the chief means of living happily in our own country. If it is important and useful to us to know the principles of the element we breathe, surely it
is not much less important and useful to us to •understand the principles and to •attempt to improve laws by which alone we breathe that element in security. If we imagine an author—especially a famous author—to be and to declare himself to be a determined and persevering enemy of such an attempt, what should we say of him? We should say that the interests of reformation, and thus the welfare of mankind, were inseparably connected with the downfall of his works, or at least of a great part of the esteem and influence these works might have acquired.
It has been my misfortune (and not only mine) to see—or at least fancy I saw—such an enemy in the author of the celebrated Commentaries on the laws of England, an author whose works have had incomparably wider circulation and more esteem, applause, and consequently influence than any previous writer on that subject, their influence being something to which they were in many ways entitled.
That is why a while ago I conceived the plan of •pointing out some of what seemed to me to be the chief blemishes of that work, especially this grand and fundamental one of hostility to reformation; or rather •of laying open and exposing the sloppiness and confusion that seemed to me to pervade the whole. For, indeed, such an ungenerous antipathy seemed to indicate that there must be a general vein of obscure and crooked reasoning from which no clear and sterling knowledge could be derived; so intimate is the connection between some of the gifts of the understanding and some of the affections [see Glossary] of the heart.
It is with this in mind that I took in hand that part of the first volume to which the author has called its Introduction. This part of the work contains
•whatever comes under the label ‘general principles’; 1 [Footnotes by B&H explain that these are references to a the exploratory travels of Captain James Cook and b Joseph Priestley’s investigations into
‘different kinds of air’.]
A Fragment on Government Jeremy Bentham Preface
•the preliminary views that he thought fit to present concerning certain topics (real or imaginary) that he found to be linked with his subject law by identity of name: two or three sorts of laws of nature, the revealed law, and a certain law of nations;
•remarks on several topics that relate to all laws or institutions in general, or at least to whole classes of institutions without relating to any one more than to another;
•his definition, such as it is, of the whole branch of law that he had taken for his subject.
Some people would consider that ‘branch’ to be a main stock, and would call it simply ‘law’. He calls it ‘municipal law’, to distinguish it from the other ‘branches’. He gives an account, such as it is, of the nature and origin of •natural society, the mother of municipal law, and of •political society, its daughter (begotten in the bed of metaphor)—this division, such as it is, of an individual law into what he fancies to be its parts; also an account, such as it is, of the method to be adopted for interpreting any law that may occur.
He gives an account •of the division of the Law of England into its two branches, the so-called ‘statute’ or written law, and the common or unwritten law (these are distinguishable from one another not in their content but only in respect of their source);
•of a what are called ‘general customs’, or institutions in force throughout the whole empire or at least the whole nation;
•of b what are called ‘particular customs’, institutions of local extent established in particular districts; and
•of c adopted institutions of a general extent that belong to what are called the ‘civil’ and the ‘canon’ laws;
all three a b c being taken as so many branches of what is
called the ‘common law’. In short, he offers a general account of d Equity, that capricious and incomprehensible mistress of our fortunes, whose features neither our author nor perhaps anyone else can delineate properly; of Equity, who having started as a rib of e Law but has since in some dark age been plucked from her side when she was sleeping, by the hands not so much of God as of enterprising judges, and now lords it over e her parent sister.
All this, together with an account of the different districts of the empire over which different portions of the Law prevail, or over which the Law has different degrees of force, composes the part of our author’s work that he calls the ‘Introduction’. The whole thing is prefaced by an eloquent ‘Discourse on the study of the Law’, which I shan’t trouble with because it is of the rhetorical rather than of the instructive kind.
Rather than vainly trying to travel over the whole of so vast a work, I planned to take a portion of it that might provide a fair and adequate sample of the character and tone of the whole. And I thought that the part marked here ·in this Preface· would abundantly suffice for this purpose. Though narrow in extent, it was the most conspicuous, the most characteristic part of our author’s work, and that which was most his own. The rest was little more than compilation [lists
and assemblages of details]. In pursuing my examination thus far, I thought I would be pursuing it as far as was necessary for my purpose. . . .
That project took me as far as the middle of the definition of municipal law, but there I was surprised to find the digression that makes the subject of the present Essay. This created a puzzle for me:
•it would seem strange to by-pass in silence such a large and significant part of the work I was examining; on the other hand,
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•I saw no possibility of examining this anomalous dissertation without cutting in pieces the thread of my discourse.
Under this doubt, I decided to pass it by, at any rate for the present, encouraged in this by the fact that I could not see any connection between the digression and anything that came before or after. That’s what I did: continuing my examination of the definition from which it digressed, I travelled on to the end of the ‘Introduction’.
Then I had to come to some definite decision concerning this ill-fitting digression. I was reluctant to leave the enterprise I had begun, with this bit of it unfinished; so I sat down to give what I intended to be a very slight and general survey of it. But the further I went in examining the digression
•the more confused and unsatisfactory it seemed to me to be,
•the harder I found it to know what to make of it, and •the more words I needed to say so.
That was how the present Essay grew to the size in which the reader sees it. When it was nearly completed, it occurred to me that just as the digression I was examining was unconnected with the text from which it starts, so also my critique of that digression need not be connected with my critique of the text. The former was much too large to be engrafted into the latter; and since if it accompanied it at all it could only be in the form of an appendix, there seemed no reason why the same publication should include them both. So I decided to deal with the digression as thoroughly as I could and as I thought necessary, and to publish this treatment separately, with the possibility of publishing the rest at some later time. . . .
This enterprise—·this attack on the ‘digression’·—may strike most people as extraordinary and many as unaccept- able, so in self-defence I shall try to state with some degree
of precision the grounds of the war I think myself bound to wage against this work, waging it in the interests of true science [see Glossary], and of liberal improvement. For this purpose I shall mark out the points of view in which it seems principally reprehensible, not forgetting those in which it seems still entitled to our approval and applause.
Everyone who finds anything to say on the subject of law may be said to adopt either of two characters: that of the expositor and that of the censor. It is the expositor’s role to explain to us what he thinks the Law is; the censor’s role is to observe to us what he thinks it ought to be. So the former is principally occupied in stating or looking for facts; the latter in discussing reasons. The expositor’s work gives him no concern with any faculties of the mind except apprehension, memory, and judgment; the censor’s requires him to take some account of the affections [see Glossary], because of the feelings of pleasure or displeasure that he finds occasion to annex to the objects under his review. What is law is widely different in different countries, whereas what ought to be law is in all countries the same to a great degree. So the expositor is always a citizen of some particular country, while the censor is or ought to be a citizen of the world. It is for the expositor to show what the legislator and his underworkman [Bentham’s word] the judge have done already; it is for the censor to suggest what the legislator ought to do in future. In short, it is for the censor to teach the science which others convert into an art that the legislator practises.
Let us now return to our author. Of these two perfectly distinguishable functions, only the expositor’s fell necessarily within his province. His professed aim was to explain to us what the laws of England were. . . . The work of the censor was to him a mere decorative extra—a work which, if aptly executed, would be a great ornament to the principal one, and highly instructive and entertaining to the reader, but
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which he could have omitted without being accused of any deficiency. If he—or any of those who had gone before him on the same line—had added this extra to the principal, this would lay him under additional obligations and impose on him new duties. But however it might differ from the principal work, the ‘extra’ should agree with it in this: it should be carried out with impartiality or not at all.
If a hasty and undiscriminating •condemner of what is established may expose himself to contempt, a bigoted or corrupt •defender of the works of power becomes (in a way) guilty of the abuses he supports; the more so if he tries by oblique glances and sophistical glosses to guard from reproach, or recommend to favour, things that he doesn’t know how—and dares not attempt—to justify. To a man who contents himself with simply describing an institution as he thinks it is, no-one would think of aiming at him any reproach or applause the institution may be thought to deserve. But if he is not content with this humbler function and undertakes to give reasons on behalf of it, whether the reasons are made by him or found by him, the situation is very different. Every false and sophistical reason that he helps to circulate can be charged against him. He ought also to be held guilty of reasons that he delivers as from other writers without censure [see Glossary]. By officiously adopting them, he makes them his own—almost as much when he delivers them under the names of the respective authors as if he delivered under his own name. For the very idea of a reason indicates approval; so that to deliver a remark under that character, without censure, is to adopt it. So a man won’t present an argument that he doesn’t really want to see approved without giving some indication of his disapproval of it. He will find some way to wash his hands of it, to let men see that he is merely reporting the judgment of someone else and not presenting one of his own. He will then lay the blame
on that other person; or at least he will take care to repel it from himself. If he omits to do this, the most favourable cause that can be assigned to the omission is indifference, indifference to the public welfare, which is itself a crime.
It is astonishing how quick some people have been to look on it as a kind of presumption—and ingratitude, rebel- lion, cruelty, and I know not what else—to •allege that an old-established law could in any respect be a fit object of condemnation, or even to •allow anyone to imagine such a thing. I shan’t go into the reasons for this attitude, whether it comes from
•a kind of personification that treats the Law as a living creature, or
•a routine, unthinking veneration for antiquity, or •some other delusion of the fancy.
For my part, I can’t think of any good reason why the merit of justifying a good law should be thought greater than the merit of censuring a bad one. Under a government of laws, what is the motto of a good citizen? To obey punctiliously; to censure freely.
This much is certain: a system that is never to be cen- sured will never be improved; if nothing is ever to be found fault with, nothing will ever be mended; and a resolution to justify everything and disapprove of nothing is a resolution which (in the future) must stand as an effective bar to all the additional happiness we can ever hope for, and (in the past) would have robbed us of the share of happiness that we enjoy already.
And the disposition to find ‘everything as it should be’ is at variance with itself. The commonplace arguments in support of it don’t justify what is established any more than they condemn it, because whatever is now established was once innovation!
·Let us not worry about the possibility that censure may
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come too quickly and not be justified·. Precipitate censure of a political institution recoils on the head of the person who casts it. If the institution is well grounded, it can’t suffer from such an attack, ·and the attack may even do some good·. If it makes no impression on anyone, it’s as though it hadn’t happened, and we can ignore it. If it does make an impression, it naturally draws people to defend against it. For if •the institution really is beneficial to the community in general, there are bound to be individuals who have an interest in its preservation. Their work will bring to light the reasons on which •it is based; and from seeing those reasons, those who previously accepted it on trust now embrace it on conviction. Thus, even censure that is ill-founded has no effect on an institution except to subject it to the test that cries down the value of those on which mere prejudice has stamped a currency, and confirms the credit of those of sterling utility. [Note Bentham’s coinage metaphor: stamp, currency,
credit, sterling. He resorts to this often, e.g. ‘coining facts’ and ‘spending
argument’ on page 25.]
When censure is passed on legal institutions, it usually does not arise from passion and ill-humour. When men speak from passion and ill-humour, they are in ill-humour with men, not laws; it is men, not laws, that are the butt of arrogance. Spleen and turbulence may indeed prompt men to quarrel with living individuals; but when they complain about the dead letter of the Law—the work of now-dead lawgivers against whom they can’t have had any personal antipathy—it is always because they see, or at least believe, that they have a real grievance. The Law is no man’s enemy; the Law is no man’s rival. Ask the clamorous and unruly multitude: it is never the Law itself that is in the wrong; it is always some wicked interpreter of the Law who has corrupted and abused it.
So there is no basis for the terrors, or pretended terrors, of
those who shudder at the idea of a free censure of established institutions. So little does the peace of society require men •to be taught to accept anything as a reason •to give the same abject and indiscriminating homage to the laws in this country as are given to despots elsewhere. The fruits of such tuition are visible enough in the character of that race of men who have always occupied too large a space in the circle of the ·legal· profession—a passive and enervated race, ready to swallow anything, and to acquiesce in anything; with intellects that can’t distinguish right from wrong, and with affections [see Glossary] that can’t do so either; insensible, short-sighted, obstinate, lethargic (yet liable to be driven into convulsions by false terrors); deaf to the voice of reason and public utility; obsequious only to the whisper of interest and to the wink of power.
This kind of mischief [see Glossary] is perhaps included in the former, ·i.e. in the general category of harm to the country·. For why is it an evil to a country that the minds of those who have the Law under their management should be thus enfeebled? It is because it makes them unable to undertake any enterprise of improvement.
Not that a race of lawyers and politicians of this enervated breed is much less
•dangerous to the continuance of such felicity as the state has at any given period than it is
•fatal to its chance of attaining more. If the designs of a minister are harmful to his country, who will best serve him as an instrument or a dupe? Surely, the sort of man who is always on his knees before the footstool of authority, and who thinks that when those above him or before him have pronounced, it is a crime to have an opinion of his own.
Those who duly consider on what slight and trivial circumstances, even in the happiest times, the adoption or
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rejection of a law so often turns, circumstances that have nothing to do with that law’s utility; •those who consider the desolate and abject state of the human intellect during the periods when so many of the present institutions had their birth; •those who consider most men’s reluctance to tilt against the Colossus of authority except when they are spurred by personal interests or resentments; if they give these considerations their due weight, will perhaps not be quite as zealous as our author has been to terrify men from setting up what is now ‘private judgment’ against what once was ‘public’, or to thunder down the harsh epithet of ‘arrogance’ on those who, with whatever success, are occupied in bringing rough bits of legislation to the test of polished reason. They will rather do what they can to cherish a disposition that is so useful and so rare,1 and which is so little nourished by the propensities that govern the multitude of men. They will. . . .acknowledge that if there are some institutions which it is ‘arrogance’ to attack, there may be others which it is effrontery to defend.
•The discernment that enables a man to perceive—and the courage that enables him to avow—the defects of a system of institutions is of a piece with •the detailed sharpness of conception that enables him to give a clear account of it. No wonder then, in a treatise partly of the expository sort and partly of the censorial, that when the latter part is filled with imbecility [here meaning ‘is thoroughly incompetent’], symptoms of the same weakness also appear in the former.
But the former part of our author’s work is something that I would hardly have wanted to get involved in for its own sake. The business of simple exposition is a harvest that
seemed likely enough to have plenty of labourers; so I had little ambition to thrust my sickle into it.
[Bentham writes at some length about the tone he would have adopted if he had been writing solely about the expository part of the work of ‘our author’. He concludes:] To lay open and if possible repair the imperfections of the expository part might indeed do service; but I thought it would do more service to weaken the authority of the censorial part.
Under the sanction of a great name, every string of words however unmeaning, every opinion however erroneous, will have a certain currency. Reputation adds weight to sentiments [see Glossary] that had no part in creating the reputation, and that might have been regarded as negligible if they had stood alone. Popular fame does not concern itself with fine distinctions. Merit in one department of scholarship provides a natural (and in a way unchangeable) presumption of merit in another, especially if the two departments appear to be closely related.
A man who is for whatever reason admired as an adviser has an amazing influence over young minds. Those who have (or think they have) derived knowledge from what he knows (or appears to know) will naturally want to judge as he judges, reason as he reasons, approve as he approves, condemn as he condemns. For that reason, when a work is unsound throughout, it may be useful to attack the whole of it without distinction, even if the parts of it that are noxious as well as unsound are only scattered here and there.
So it may be useful to show that the work before us, in spite of the merits that recommend it so powerfully to the imagination and to the ear, is not given by those merits any entitlement to have the influence which it might, if it weren’t
1 Its rarity may be seen in the multitude of expositors whom the jurisprudence of every nation furnished before it provided a single censor. When Beccaria came, he was received by the intelligent as an angel from heaven would be by the faithful. He may be styled the father of censorial jurisprudence. [His 1764 work on Crimes and Punishments condemned torture and the death penalty.]
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examined critically, continue to exercise over the judgment. The ‘Introduction’ is the part to which, for reasons I have
given, I always intended to confine myself. The present Essay is concerned with only a part of this ‘Introduction’. I decided to begin with •this small part because of how easily I could separate •it from everything that precedes or follows it. I will deal with this in more detail in another place.1
It is not that this part is one of those that seemed most open to attack. This part does not display especially strong traces of that spirit in our author which seems so hostile to reformation and to the liberty that heralds reformation.
It is not here that he •tramples on the right of private judgment, that basis of everything that an Englishman holds dear; •insults our understandings with trivial reasons; •stands forth as a professed champion of religious intoler- ance; or •openly opposes civil reformation. It is not here, for example, that he
a tries to persuade us that a trader who occupies a booth at a fair is a fool for his pains, and therefore not fit for the Law’s protection;
b gives the presence of one man at the making of a law as a reason why ten thousand others that are to obey it need know nothing about it;
c after telling us explicitly that a burglary requires an ‘actual breaking’, goes on almost immediately to tell us equally explicitly where burglary can occur without actual breaking, because ‘the Law will not suffer itself to be trifled with’;
d after describing the laws by which peaceable Christians are made punishable for worshipping God according to their consciences, pronounces in an equally peremptory and confident way that
‘everything’—yes, everything—‘is as it should be.’ e commands us to believe—on pain of forfeiting all claims to ‘sense or probity’—that our system of jurisprudence is over-all and in every part the very quintessence of perfection;
f assures us as a matter of fact that there never has been an alteration made in a law that men have not afterwards found reason to regret;. . . .
g turns with scorn on the beneficent legislators who have wanted to pluck the mask of mystery from the face of jurisprudence.
And although here as everywhere he is eager to hold the cup of flattery to high rank, in this place he stops short of idolatry.
·BENTHAM’S FOOTNOTES TO ITEMS a THROUGH g·
a ‘Burglary’, says our author, ‘cannot be committed in a tent or a booth erected in a market fair, though the owner may lodge therein: for the Law regards thus highly nothing but permanent edifices—a house, or church; the wall, or gate of a town—and it is the folly of the owner to lodge in so fragile a tenement.’ To save himself from this charge of folly, it is not altogether clear which of two things the trader ought to do: quit his business and not go to the fair at all, or leave his goods without anybody to take care of them. b Speaking of an act of Parliament, he says: ‘There needs no formal promulgation to give it the force of a Law, as was necessary by the Civil Law with regard to the Emperor’s Edicts: because every man in England is, in judgment of Law, party to the making of an Act of Parliament, being present at it by his representatives.’ This may for all I know be good judgment of Law, because anything can be called
1 [He means that he will deal with everything in the Commentaries apart from the tiny bit of it that is his present topic. He did so in his enormous A Comment on the Commentaries, a work that he left uncompleted and was not published until long after his death.]
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judgment of Law that comes from a prominent lawyer; but it does not seem to be much like anything that can be called judgment of common sense. . . . c His words are: ‘There must be an actual breaking,. . . .a substantial and forcible irruption.’ In the next sentence but two he continues: ‘But to come down a chimney is held a burglarious entry; for that is as much closed as the nature of things will permit. So also to knock at a door, and upon opening it to rush in with a felonious intent; or under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have been adjudged burglarious, though there was no actual breaking: for the Law will not suffer itself to be trifled with by such evasions.’ Can it be more egregiously trifled with than by such reasons?. . . . d ‘In what I have now said’, says he, ‘I would not be understood to derogate from the rights of the national Church, or to favour a loose latitude of propagating any crude undigested sentiments in religious matters. Of propagating, I say, for merely having them, without an endeavour to diffuse them, seems hardly cognizable by any human authority. I only mean to illustrate the excellence of our present establishment by looking back to former times. Everything is now as is should be: unless, perhaps, that heresy ought to be more strictly defined, and no prosecution permitted, even in the Ecclesiastical Courts, till the tenets in question are by proper authority previously declared to be heretical. Under these restrictions it seems necessary for the support of the national religion’ (the national religion being such, we are to understand, as could not support itself if anyone were allowed to make objections to it) ‘that the officers of the Church should have power to censure heretics but not to exterminate or destroy them.’. . . .
e I am not quite sure how far back he meant this opinion to extend itself—whether he meant it to apply only to •the institutions that happened to be in force at the time when he was writing or also to •such opposite institutions also as, within any given distance from that time, had been in force or were about to be. His words are as follows: ‘All these rights and liberties it is our birthright to enjoy entire; unless where the Laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, as will appear upon further enquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do everything that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens.’ If the reader wants to know what these rights and liberties are, I answer him (out of the same page) they are those ‘in opposition to one or other of which every species of compulsive tyranny and oppression must act, having no other object upon which it can possibly be employed.’ The liberty, for example, of worshipping God without being obliged to declare a belief in the XXXIX Articles is a liberty that no ‘good man’, ’no man of sense or probity’, ‘would wish for’.
f If no reason can be found for an institution, we are to suppose one: and it is upon the strength of this supposed one we are to cry it up as reasonable. . . . The words are ’Not that the particular reason of every rule in the Law can, at this distance of time, be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the Law will presume it to be well founded. And it has been an ancient observation in the Laws of England’ (he might with as good ground have added ‘and in all other Laws’) ‘that whenever a standing rule of Law, of which the reason perhaps could not be
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remembered or discerned, has been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule has in the end appeared from the inconveniences that have followed the innovation.’ When a sentiment is expressed and—whether from caution or from confusion of ideas—a clause is put in by way of qualifying it that turns it into nothing,1 we can fairly take it that the probable effect of the whole passage is what it would be if no such clause were there. . . . Taking the qualification into the account, the sentiment would make no impression on the mind at all; if it makes any, the qualification is dropped and the mind is affected in nearly the same way as it would if the sentiment stood unqualified. This, I think, we may conclude to be the case with the passage quoted above. The word ‘wantonly’ is, in pursuance of our author’s standing policy, inserted by way of salvo.2 With it the sentiment is as much as comes to nothing. Without it, it would be extravagant. Yet if it has any effect on the reader, it is probably in this extravagant form. The comic part of the contrivance is the mention of ‘statutes’ and ‘resolutions’ (the latter meaning decisions of courts of justice) in the same breath, as if it made no difference which of these broke in on a rule of Law. For a new resolution to break in upon a standing rule is indeed something that is big with mischief. But this mischief depends not on the rule’s being a reasonable one but on its being a standing, an established one. A new resolution made in the teeth of an old established rule is mischievous because it shakes whatever confidence men may have in the stability of any rules of Law, reasonable or not reasonable—that stability on which everything that is valuable to a man depends. However beneficial it may be to the party [see Glossary] in
whose favour it is made, its benefit to him can never outweigh the mischief it brings to the community at large. It is what Lord Bacon calls setting the whole house on fire in order to roast one man’s eggs. Here then the salvo is not needed; a new resolution that is contrary to a standing rule is on that very account wanton. Let such a resolution be made, and ‘inconveniences’ in abundance will sure enough ensue; and what that will show is not •the wisdom of the rule but—a very different thing—•the folly of breaking in upon it. It is almost superfluous to remark that none of this applies in general to a statute. Particular statutes may be conceived that would thwart the course of men’s expectation and thus produce mischief in the same way that irregular resolutions do. A new statute—unless it is simply a declaratory one—must break in upon some standing rule of Law. To tell us that a ‘wanton’ statute has produced ‘inconveniences’, what is that but to tell us that a thing that has been mischievous has produced mischief? Of this type are the arguments of all those senile politicians who, when out of humour with a particular innovation without being able to tell why, set themselves to declaim against all innovation because it is innovation. It is the nature of owls to hate the light: and it is the nature of those politicians who are wise by rote to detest everything that forces them either to find (what may be impossible) reasons for a favourite persuasion or (what is not endurable) to discard it.
g It is from the decisions of courts of justice that those rules of Law are framed, on the knowledge of which depend the life, the fortune, the liberty of every man in the nation. The records of these decisions are, according to our author, the most authentic histories. These Records were until 45 years
1 [The ‘clause’ in question is the word ‘wantonly’; in calling it a ‘clause’, Bentham may be jokingly treating it as a legal technicality.] 2 [Bentham may mean this in either of two meanings given by the OED: •As a legal term for a special kind of saving clause. •‘A dishonest mental
reservation, an evasion’.]
ago in Law-Latin, a language which about one man in a thousand used to fancy himself to understand (that is a high estimate). Our author is satisfied they should have been continued in this Law-Latin, because the pyramids of Egypt have stood longer than the temples of Palmyra. He observes that the Latin language could not express itself on the subject without borrowing many words from English, which is to help to convince us that of the two Latin is the fittest to be employed! He says that this Latin was not more unintelligible than the jargon of the schoolmen, some examples of which he produces. And then he goes on: ‘This technical Latin continued in use from the time of its first introduction till the subversion of our ancient constitution under Cromwell; when, among many other innovations on the body of the Law, some for the better and some for the worse, the language of our records was altered and turned into English. But at the Restoration of King Charles, this novelty was no longer countenanced; the practisers finding it very difficult to express themselves so concisely or significantly in any other language but the Latin. And thus it continued without any sensible inconvenience till about the year 1730, when it was again thought proper that the Proceedings at Law should be done into English, and it was accordingly so ordered by statute. This was done in order that the common people might have knowledge and understanding of what was alleged or done for and against them in the process and pleadings, the judgments and entries in a cause. Which purpose I know not how well it has answered; but am apt to suspect that the people are now, after many years experience, altogether as ignorant in matters of law as before.’ In this scornful passage the words novelty—done into English—apt to suspect—altogether as ignorant—sufficiently show the affection [see Glossary] of the mind that dictated it. It is thus that our author chuckles over
the supposed defeat of the legislature with a fond exultation which all his discretion could not persuade him to suppress.
The case is this. A large portion of the body of the Law was, by the bigotry or the artifice of lawyers, locked up in an illegible character and in a foreign tongue. The statute he mentions obliged them to give up their hieroglyphics, and to restore the native language to its rights. This was doing much; but it was not doing everything. Fiction, tautology, technicality, circuity, irregularity, inconsistency remain. But above all the pestilential breath of fiction poisons the sense of every instrument it comes near. The consequence is that the Law—and especially the part of it relating to Procedure—is still far from being generally intelligible. The fault of the legislature, then, is their not having done enough. His quarrel with them is for having done anything at all. . . .
·END OF FOOTNOTES TO ITEMS a–g STARTING ON PAGE 7·
The principal seat of the poison against which I aim to give an antidote is not this part, or any part, of the Introduction, which is the only passage I have any thoughts of examining. The subject handled in this part of the work does not admit of much to be said in the person of the censor. Employed, as we have seen, in settling matters of a preliminary nature in drawing outlines, this part does not provide occasion to enter into the details of any particular institution. I chose the Introduction in preference to any other part of the work because it provides the fairest specimen of the whole, and not because it provides the greatest scope for censure.
While with this freedom I expose our author’s faults, let me not be backward in acknowledging and paying homage to his various merits. I should do this in fairness not only to him but to the public which for so many years has been giving him so much applause, presumably not without reason.
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Correct, elegant, unembarrassed, ornamented, his style is such as could hardly fail to recommend to the multitude of readers a work that was even more wrong in its content.
In short, he is the first institutional writer who has taught jurisprudence to speak the language of the scholar and the gentleman; to put a polish on that rugged science [see
Glossary]; cleansed her from the dust and cobwebs of the office. And if he has not enriched her with the precision that is drawn only from the sterling treasury of the sciences, he has decked her out from the toilette of classic erudition; enlivened her with metaphors and allusions; and sent her out in some measure to instruct, and in still greater measure to entertain, the most miscellaneous and even the most fastidious societies. The merit to which the work stands indebted for its reputation, as much perhaps as to any, is the enchanting harmony of its numbers [= musicality], a kind of merit that is sufficient to give a certain degree of celebrity to a work devoid of every other. So much is man governed by the ear.
The function of the expositor may be conceived to divide itself into two branches: that of history and that of simple demonstration. The business of history is to represent the Law in the state it has been in, in the past; the business of simple demonstration, in the sense in which I will use the word, is to represent the Law in the state it is in right now.1
The category of demonstration contains the several busi- nesses of a arrangement, b narration and c conjecture. It can be called ‘narration’ where the Law is supposed to be explicit, clear, and settled; and ‘conjecture’ or ‘interpretation’ where it is obscure, silent, or unsteady. And ‘arrangement’ is distributing the various real or supposed institutions into
different masses, determining the order in which they shall be brought to view in a general survey, and finding a name for each.
[Bentham says that he won’t discuss the b narration, the c interpretation, or the history presented by ‘our author’, because he has not worked on them. He then continues:]
Among the most difficult and important of the demon- strator’s tasks is the business of a arrangement. In this our author has been thought—not without justice, I think—to excel; at least in comparison to anything of that sort that had previously appeared. It is to him that we owe an arrangement of the elements of jurisprudence that may be just about the best that a technical nomenclature will admit of. A technical nomenclature, so long as it is accepted as marking out and naming the principal headings, stands as an invincible obstacle to every arrangement other than a technical one. [After an extremely obscure account of why a technical arrangement, i.e. one governed by a technical nomenclature, must be ‘confused and unsatisfactory’, Bentham says that to grasp this properly we need to] understand what a properly so-called natural arrangement would have to be.
I take it that any arrangement of the materials of any science can be called natural if it characterises them by properties that men in general are, by the common constitution of man’s nature, disposed to attend to; in other words, properties that naturally—i.e. readily—engage and firmly fix the attention of anyone to whom they are pointed out. The materials or elements we are concerned with here are actions that can be the objects of what we call laws or institutions.
No property of actions is calculated so readily to engage (and so firmly to fix) the attention of an observer as their
1 The word ‘demonstration’ may seem to be out of place. In our language it is mainly used in the sense in which it is employed by logicians and mathematicians, which is not how I mean it; but on the Continent it is currently employed in many other sciences, as when the French have their démonstrateurs de botanique d’anatomie, de physique expérimentale, etc. I don’t know of any other word that will suit my purpose.
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relation—whether tendency towards [see Glossary] or divergence from—the common goal of them all, namely happiness. An act’s tendency to promote happiness is what we call its utility; its divergence from this is what we call harmfulness [see Glossary]. So it is with actions that are among the objects of the Law: the only way to make a man see clearly the property of them that every man is in search of—i.e. the only way to give him satisfaction—is to point out to him their utility or harmfulness.
Utility, then, can give us a principle that may serve to preside over any arrangement we make of the various institutions or combinations of institutions that compose the matter of this science ·of jurisprudence·. This principle, by putting its stamp on the names given to those combinations, can make satisfactory and clear any arrangement that is made of them; and nothing else can do so. Governed in this manner by a principle that is recognized by all men, the same arrangement that would serve for the jurisprudence of any one country would serve almost unchanged for that of any other.
Another advantage: the harmfulness of a bad law would be detected, or at least its utility would be made suspect, by the difficulty of finding a place for it in such a ·natural· arrangement; whereas a technical arrangement is a sink that will easily swallow any garbage that is thrown into it.
With such a natural arrangement, institutions would have to be characterised by the nature of the various modes of conduct that they prohibit, thus making them offences.1
These offences would be collected into classes labelled by
their various kinds and degrees of harmfulness, i.e. by the properties of them that are reasons for their being made offences. Whether any such mode of conduct does have such a property is a question to be answered by experience.
A bad law is one that prohibits a mode of conduct which is not harmful. Thus to classify any mode of conduct prohibited by a bad law as some kind of offence would involve asserting something that is contradicted by experience. Thus cultivated, the soil of jurisprudence would be found to repel, in a way, every evil institution. . . .
The synopsis [see Glossary] of such an arrangement would be a compendium of both a expository and b censorial jurisprudence. It would serve to b justify or reprove the legislator at least as effectively as to a instruct the subject.
In short, such a synopsis would be both a universal map of a jurisprudence as it is and a slight but comprehensive sketch of b what it ought to be. That is because it would express the reasons for the various institutions it covers through the names the synopsis gives to the classes those institutions belong to (and it would do this uniformly, whereas in our author’s synopsis they are expressed in scattered instances). And what reasons? Not technical reasons, such as none but a lawyer gives, and none but a lawyer would put up with, but reasons that any man might understand.
Nothing in this need surprise us. The consequences of any law, or of any act that is made the object of a law—the only consequences that men are at all interested in—what are they but pain and pleasure?2 So they can be named by some such words as ‘pain’ and ‘pleasure’, and these
1 There can be offences of omission as well as of commission. I don’t want the complication of treating laws that command separately from laws that prohibit. My phrase ‘mode of conduct’ covers omissions or forbearances as well as acts.
2 The reason for a law, in short, is simply the good produced by the mode of conduct it commands or (which comes to the same thing) the mischief produced by the mode of conduct it prohibits. If this mischief or this good is real, it is bound to show itself somewhere in the shape of pain or pleasure.
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are words that a man can understand without help from a lawyer! In the synopsis of any arrangement that deserves to be called ‘natural’, the most dominant positions will be occupied by terms such as these. They are terms which, if they can be said to belong to any science [see Glossary], belong to ethics rather than to jurisprudence, even universal jurisprudence.
What then is to be done with the purely technical names of kinds of conduct—for example, with ‘offence against prerogative’, ‘misprision’, ‘contempt’, ‘felony’, ‘praemunires’? What relation do they mark out between •the laws that concern the sorts of acts they stand for and •the common goal, ·happiness·, I have been speaking of? None! So what would become of them in a natural arrangement? They would either •be banished at once to the region of ·metaphysical nonsense such as· ‘quiddities’ and ‘substantial forms’ or •be positioned in the corners and back-alleys of the synopsis—stationed not to give light but to receive it.
To return to our author. Embarrassed, as a man must be, by this blind and intractable ·technical· nomenclature, he will be found, I think, to have done as much as could reasonably be expected from a writer in that situation, and more and better than was ever done before by anyone.
In one part of his synopsis, especially, we find several fragments of a sort of method [see Glossary] that comes close to what may be termed a ‘natural’ one. We read there of corporal injuries, and of offences against
•peace,
Light is let in, though irregularly, at various places. . . .
To return to our author’s Commentaries: even in a censorial view I don’t regard them as altogether without merit. Good reasons are occasionally given for the institutions commented on, where they are capable of good reasons; and that, as far as it goes, achieves one-half of the censor’s task. Nor is the dark side of the picture left absolutely untouched. Under the heading ‘Trial by jury’ there are some very just and interesting remarks on the still-remaining imperfections of that mode of trial; and under the heading ‘Assurances by matter of record’, good things are said about the lying and extortionate jargon of ‘recoveries’. As well as saying what is wrong with these things, he also points out well-imagined remedies for them. But these particular remarks are so out of harmony with the general disposition that appears so strongly throughout the work—indeed so flatly contrary to the general maxims that we have seen—that I can scarcely bring myself to attribute them to our author. One would think some angel had been sowing wheat among our author’s tares [a weed that resembles wheat]. . . .
With regard to this Essay itself, I have not much to say. Its principal and professed purpose is to expose our author’s errors and insufficiencies. The business of it is therefore to overthrow rather than to set up; and latter task can seldom
1 This title exemplifies the way a natural arrangement can repel an incompetent institution. What I mean is the sort of filthiness that is called unnatural [He is talking about sodomy.]. Our author has ranked this in his class of Offences against personal security and in a subdivision of it entitled Corporal injuries. In so doing, he has made the factual claim that the offence in question is productive of unhappiness in that way. But in cases where the act is committed by consent, this is manifestly not true. The law against the offence in question would be an entirely bad law if its basis were that false factual claim. The mischief the offence brings to the community in this case is of quite another nature, and would come under quite another class. When against consent, it does belong really to this class; but then it comes under another heading, namely ‘rape’.
13
A Fragment on Government Jeremy Bentham Introduction
be performed to any great advantage where the former is the principal one.
To guard against misrepresentation and make sure of doing our author no injustice, his own words are given all along. Hardly any sentence is left unnoticed, so that what I offer is a kind of running commentary. When a writer builds on a plan of his own, the satisfactoriness of his product depends to a large extent on the order and connection he establishes between its various parts. But in a comment on the work of someone else, no such connection—or at least no such order—can be established conveniently, if at all. The order of the comment is prescribed by the order, perhaps the disorder, of the text.
This Essay, I repeat, is mainly engaged in overthrowing; in the little it does in the way of setting up, I have aimed not so much to think for the reader as to stir him to think for himself. I flatter myself that I have done this on several interesting topics; and that is all that at present I propose.
Among the few views of my own that I have found occasion to advance, some promise to be far from popular, and may well give rise to very warm objections. I do not wonder at these objections, and I have to approve of their motive. ·Thinking of the writer as a servant of his readers·, the people are a set of masters whom a man cannot always fully please and at the same time faithfully serve. Anyone who is resolved to persevere without deviation in the line of truth and utility needs to learn to prefer the still whisper of enduring approval to the short-lived bustle of tumultuous applause. . . .
Introduction
1. The subject of this examination is a passage contained in the part of Sir W. Blackstone’s Commentaries on the Laws of
England that the author has called the ‘Introduction’. This introduction of his is divided into four sections:
(1) his discourse ‘On the Study of the Law’; (2) under the title ‘Of the Nature of Laws in General’,
his speculations concerning the various items, real or imaginary, that are commonly brought under the common name ‘law’;
(3) under the title ‘Of the Laws of England’, general observations on the laws that he thought he should offer as a preliminary to the details of any parts of them in particular;
(4) under the title ‘Of the Countries subject to the Laws of England’, his statement of the different territorial extents of different branches of those laws.
2. It is in (2) that we find the passage I propose to examine. It is seven pages long.
3. After treating of ‘Law in general’, ‘Law of nature’, ‘Law of revelation’, and ‘Law of nations’, ·so-called· branches of the imaginary whole ·that I mentioned on page 2·, our author comes at length to what he calls ‘municipal law’. This is the sort of law that men in ordinary conversation would call simply ‘law’ without addition; the only sort perhaps (unless it be that of Revelation) to which the name can, with strict propriety, be applied: in a word, that sort which we see made in each nation, to express the will of its governing body. On this subject of ‘municipal law’ he sets out, as he should, with a definition of the phrase itself; an important and fundamental phrase that badly needed a definition, and never as badly as since our author has defined it!
4. This definition is ushered in with no small display of elaborate detail. First it is given entire; then it is then taken to pieces, clause by clause; and every clause is separately justified and explained. In the very midst of these explanations, in the very midst of the definition, he suddenly
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A Fragment on Government Jeremy Bentham Introduction
pauses. It now occurs to him that this is a good time to give a dissertation, or rather a bundle of dissertations, on various subjects:
a On how governments were established, b On the different forms they take when they are established,
c On the peculiar [see Glossary] excellence of the form that is established in this country,
d On the right (he thinks he needs to tell us) that the government of every country has to make laws,
e On the duty to make laws, which he says governments also have. . . .
5. The digression we are about to examine is not at all involved with the body of the work from which it starts. No mutual references or allusions; no supports or illustrations communicated or received. It can be seen as one small work inserted into a large one, with hardly any connection between the containing and the contained, except what the printing press has given them. This disconnection will help us to examine the digression separately, without breaking in on any thread of reasoning or any principle of order.
6. I have given a general statement of the topics touched on in the digression we are about to examine. I trust it will be found to be a faithful one. But it may not be thought to harmonise well with the following, which our author himself has given us:
‘This will naturally lead us into a short enquiry into the nature of society and civil government; and the natural inherent right that belongs to the sovereignty
of a state, wherever that sovereignty be lodged, of making and enforcing laws.’
(The first word ‘This’ refers to an explanation he had been giving of a part of the definition I have spoken of.)1
7. No very explicit mention here, we may observe, of a how governments have been established, or of b the different forms they take when established—no explicit indication that these were among the topics to be discussed. None at all of e the duty of government to make laws; no mention of c
the British constitution, though ·elsewhere· he has written much more copiously about this than about any of the other four listed topics. The one that for the moment seems to have swallowed up almost the whole of his attention is d the right of government to make laws—a delicate and invidious [see Glossary] topic, as we shall discover when it is explained.
8. Be that as it may, the contents of the dissertation before us, taken as I have stated them, will provide us with the matter for five chapters, to which I shall give these titles: (1) ‘Formation of government’, (2) ‘Forms of government’, (3) ‘British constitution’, (4) ‘Right of supreme power to make laws’, (5) ‘Duty of the supreme power to make laws’.
1 To make sure of doing our author no injustice, and to show what it is that he thought would ‘naturally lead us into’ this ‘enquiry’, it may be proper to give the paragraph containing the explanation above mentioned. It is as follows: ’But farther: municipal law is a rule of civil conduct, prescribed by the supreme power in a state.’ ‘For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite, to the very essence of a law, that it be made’ [he might have added or at least supported] ‘by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.’
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A Fragment on Government Jeremy Bentham 1: Formation of Government
Chapter 1: Formation of Government
1. The first objective our author seems to have set himself in the dissertation we are about to examine is to give us an idea of how governments were formed. This occupies his first paragraph and part of the second, for the typographical division does not seem to square exactly with the intellectual. My examination of this passage will unavoidably depend in great measure on the words, so the reader should have it under his eye. [Section 2 is quoted from Blackstone, verbatim.]
2. ‘The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion of an actually existing unconnected state of nature, is too wild to be seriously admitted; and besides, it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first society, among themselves; which every day extended its limits, and when it grew too large to subsist with convenience in that pastoral state, wherein the Patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes which had formerly separated, re-united again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals,
actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement of society: And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any.
‘For when society is once formed, government results of course, as necessary to preserve and to keep that society in order. Unless some superior were constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge on earth to define their several rights, and redress their several wrongs.’
3. Thus far our author. When leading terms are made to chop and change—sometimes meaning one thing, sometimes another, perhaps in the upshot meaning nothing—and when this happens within a single paragraph, one may judge what the whole context will be like. This, we shall see, is the case with the main words in the passage we have been reading, for example the words ‘society’, ’state of nature’, and ‘original contract’, not to tire the reader with any more. In one place ‘society’ means the same as ‘a state of nature’; in another place it means the same as ‘government’. Here
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we are required to believe there never has been a state of nature; there we are given to understand there has been. Similarly with respect to an original contract: we are given to understand that such a thing never existed, that the notion of it is ridiculous; and at the same time that there is no speaking or stirring without supposing there was one.
4. Firstly: ‘Society’ as meaning a state of nature. If by ‘a state of nature’ a man means anything, it is the state men are supposed to be in before they are under government, the state men leave when they enter into a state of government and that they would otherwise remain in. But by the word ‘society’ it is plain at one point that he means that state. According to him, first comes society and then comes government. ‘For when society is once formed, government results of course, as necessary to preserve and keep that society in order.’ And again, immediately after that, he offers as an explanation (and not a bad one) of a state of ‘government’, namely ’A state in which a superior has been constituted, whose commands and decisions all the members are bound to obey’; and says that if men were not in a state of that description, ‘they would still remain as in a state of nature’. So again by ‘society’ he means the same as by a ‘state of nature’; he opposes it to government, and speaks of it as a state which, in this sense, has actually existed.
5. Secondly: That is what he tells us at the beginning of the second of the two paragraphs; but throughout the first paragraph ‘society’ means the same as ‘government’. In shifting from one paragraph to another, society has changed its nature! It is ‘the foundations of society’ that he first begins to speak of, and he immediately goes on to explain to us (after his manner of explaining) the foundations of
government. Soon after, he speaks of a ‘formal beginning’ of ’society’, by which tells us that he means ‘the original contract of society’, and he says that when this contract is entered into ‘a state’ is thereby ‘instituted’, and men have undertaken to ‘submit to laws’. While this first paragraph lasts, ‘society’ plainly has to mean the same as ‘government’.
6. Thirdly: All this while too, this same ‘state of nature’ that men would ‘remain’ in if it were not for government is a state that men never were in. So he explicitly tells us on the next page: ‘This notion of an actually existing unconnected state of nature’
—that is, as he explains himself afterwards, ‘a state in which men have no judge to define their rights and redress their wrongs’—
‘is too wild to be seriously admitted.’ So when he admits it himself on his next page, we are presumably to understand that ·he is not serious, and· that he is teasing us, the second paragraph being a joke, which we wouldn’t otherwise have taken it for.
7. Fourthly: We are to understand that the original contract never occurred, perhaps not in any state and therefore certainly not in all: ‘perhaps, in no instance has it ever been formally expressed at the first institution of a state’, our author says.
8. Fifthly: Despite all this, we apparently have to suppose that in every state ‘in nature and reason it must always be understood and implied’ says our author. Growing bolder in the course of several pages concerning •our own government, he asserts roundly that such a contract was actually made at the first formation of •it: ‘The legislature would be changed from that which was originally set up by the general consent and fundamental act of the society.’1
1 [This is from the passage that occupies section 3 on page 37.]
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9. Let us try to do something towards drawing the meaning of these terms out of the mist in which our author has involved them. The word ‘society’ seems to be used by him—without warning—in two senses that are opposite. In one, ‘society’ (or ‘state of society’) is made synonymous with ‘state of nature’, and stands opposed to government (or a state of government). In this sense it may be called ‘natural society’. In the other sense, ‘society’ is made synonymous with ‘government’ (or ‘state of government’), and stands opposed to a state of nature. In this sense it may be called ‘political society’. I don’t think it will take many words to give a tolerably distinct idea of the difference between these two states.
10. The idea of a natural society is a negative one. The idea of a political society is a positive one. So we should begin with the latter.
When a number of persons (whom we may call ‘subjects’) are in the habit of paying obedience to a person, or an assemblage of persons, of a known and certain description (whom we may call ‘governor’ or ‘governors’), these persons, subjects and governors, are said to be in a state of political society.
11. When a number of persons are in the habit of conversing with each other while not being in any such habit ·of obedience· as mentioned above, they are said to be in a state of natural society.
12. A little reflection shows that these two states are not as sharply distinct from one another as we might at first expect, given these names and these definitions. It is with them as with light and darkness: however distinct the ideas that those names initially suggest, the things themselves have no determinate boundary to separate them.
The difference between these two states is the presence or absence of a habit of obedience. This habit has been
spoken of in one case as perfectly [see Glossary] present and in the other as perfectly absent; but neither of these ways of speaking is strictly accurate. There are in fact few if any cases of this habit being perfectly absent; and certainly none of its being perfectly present. Governments, accordingly, recede from or approach a state of nature in proportion to how perfect the habit of obedience is in them; and there may be cases where it is difficult to say whether the habit is perfect enough to constitute a government.
·BENTHAM’S FOOTNOTE TO SECTION 12· 1. A habit is simply an assemblage of acts, and in the present context I take ‘acts’ to include voluntary forbearances.
2. A habit of obedience, then, is an assemblage of acts of obedience.
3. An act of obedience is any act done in pursuance of an expression of will on the part of some superior.
4. An act of POLITICAL obedience (which is what I am talking about here) is any act done in pursuance of an expression of will on the part of a person governing.
5. An expression of will is either parole or tacit.
6. A parole expression of will is one that is conveyed by words.
7. A tacit expression of will is one that is conveyed signs other than words; the most effective of which are acts of punishment annexed in the past to the non-performance of acts of the same sort as the objects of the will that is in question.
8. A parole expression of the will of a superior is a command.
9. When a tacit expression of the will of a superior is supposed to have been uttered, it may be called a fictitious command.
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10. If we were free to coin words in the manner of the Roman lawyers, we might call it a quasi-command. 11. The STATUTE LAW is composed of commands; the COM- MON LAW of quasi-commands. 12. An act that is the object of an actual or fictitious command is—considered before it is performed—called a duty or a point of duty. 13. With these definitions premised, we are now in a position to give a tolerably precise idea of what is meant by the ‘(im)perfection’ of a habit of obedience in a society. 14. How perfect the habit of obedience is in a given society at a given period depends on the ratio of the number of acts of obedience to the number of acts of disobedience. 15. The habit of obedience in this country appears to have been more perfect in the time of the Saxons than in that of the Britons; unquestionably it is more so now than in the time of the Saxons. It is to be hoped that well constructed and well digested laws will in due course make it even more perfect; but it can never be absolutely perfect until man ceases to be man.
A very ingenious and instructive view of the progress of nations, from the least perfect states of political union to that highly perfect state of it in which we live, may be found in Lord Kaims’s Historical Law Tracts. 16. For the convenience and precision of discourse it may be useful here to settle the meanings of a few other expressions relative to the same subject. Persons who are in a state of a political society with respect to each other may be said also to be in a state of b political union or connection. 17. Those who are subjects can be said to be in a state of c submission or of subjection with respect to the governors; the governors can be said to be in a state of d authority with respect to the subjects.
18. When the subordination is considered as resulting originally from the will—or (it maybe more proper to say) the pleasure—of the governed party, we prefer the word ‘submission’; when from that of the governing party, the word ‘subjection’ is preferred. So the latter term can scarcely be used without apology, or with a note of disapproval; especially in this country, where the habit of considering the consent of the persons governed as being in some way involved in the notion of all lawful (i.e. all commendable) government has gained so firm a ground. . . .
·END OF FOOTNOTE TO SECTION 12·
13. On these considerations, the supposition of a perfect state of nature—a state of society perfectly natural—may rightly be declared to be extravagant, which is what our author seemed briefly to think it to be; but then that of a government that is in this sense perfect—
a state of a society perfectly political, a state of perfect b political union, of perfect c submission in the subject, of perfect d authority in the governor
—is no less extravagant. [Bentham has here a long footnote saying that although the relation of infant to parent is virtually one of perfect subjection, this does not make the family a case of ‘political society’ as this phrase is ordinarily understood: it involves too few people for that, and also the obedience it involves is essentially impermanent, which political obedience is not. In section 16 below he will call it ‘political society’, presumably meaning this as a technicality that can be understood well enough, although it does not conform to ordinary speech.]
14. To some ears, the phrases ‘state of nature’ and ‘state of political society’ may appear to be absolute [here
= ‘non-relational’] in their signification; as if the condition of a group of men in either of these states depended altogether
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on themselves. But this is not the case. No precise meaning can be given to ‘state of nature’ or ‘state of political society’ without reference to a party [see Glossary] different from the one that is spoken of as being in the state in question. The difference between the two states, I repeat, has to do with the habit of obedience, and ·obedience is relational·: for one party to obey, there must be another party that is obeyed. But the party who is obeyed may be different at different times. So a single party may be conceived to obey one person (or object of obedience) at the same time as not obeying another. Thus a single party may be said to be at one time in a state of nature and not in a state of nature, according to what party is taken for the object of obedience. In common speech, when no particular object of obedience is specified all persons in general are intended; so that when a number of persons are said simply to be in a state of nature, what is meant is that they are so with reference to one another as well as to all the world.
15. In the same manner we can understand how someone who is governor with respect to one man or set of men may be subject with respect to another; and how among governors
•some may be in a perfect state of nature with respect to each other, like the kings of France and Spain,
•others in a state of perfect subjection, as the Lords of Walachia and Moldavia are with respect to the ·Ottoman· Grand Signior;
•yet others in a state of obvious but imperfect subjection, as the German states are with respect to the Emperor;
•and still others of whom it is difficult to determine whether they are in a state of imperfect subjection or in a perfect state of nature, as the King of Naples is with respect to the Pope.
16. In the same way it may also be conceived—never mind
the details—how a single person who is born (as everyone is) into a state of perfect subjection to his parents, i.e. into a state of perfect political society with respect to his parents, may move from that into a perfect state of nature, and from that successively into any number of different states of more or less perfect political society by passing into different societies.
17. In the same way it may be conceived how in any political society one man may, with respect to the same individuals, be at different times and in different contexts, alternately governor and subject: a man x may on one day have a role in the business of issuing a general command for the observance of the whole society, including another man y in his role as judge, and then on the next day be punished by a particular command of y for not obeying the general command that x himself had issued. I need scarce remind the reader how happily this alternate state of authority and submission is exemplified among ourselves.
18. Here might be a place •to state the different shares different persons may have in issuing one command, •to explain the nature of corporate action, •to enumerate and distinguish half a dozen or more different ways in which there can be subordination between the same parties, and •to distinguish and explain the different senses of the words ‘consent’, ‘representation’, and others related to those interesting but perplexing words that are sources of so much debate and sources or pretexts of so much animosity. But the limits of my present design won’t allow such protracted and intricate discussions.
19. In the same way it may be conceived how one set of men, considered among themselves, may be in a state of nature at one time and in a state of government at another. For the habit of obedience—in whatever degree of perfection is needed for it to constitute a government—may obviously
20
be conceived to suffer interruptions. It may occur and cease at different junctures [see Glossary].
20. Examples of this state of things seem not to be infre- quent. The sort of society that the American Indians have been observed to have may provide us with one. According to the accounts we have of those people, in most of their tribes the habit I am speaking of appears to be taken up only in time of war, and to cease in time of peace. The need for co-ordinated action against a common enemy brings a whole tribe under the orders of a common chief. On the return of peace, each warrior resumes his original independence.
21. One difficulty about all this has still not been solved, namely to find a characteristic mark by which to distinguish a society where there is, from one where there is not, a habit of obedience at the level of perfection needed to constitute a state of government. I mean: a mark that has a visible determinate beginning, so that the instant of its first appearance can be distinguished from the last at which it had not yet appeared. Only with the help of such a mark can we determine at any given time whether a society is in a state of government or in a state of nature. The only such mark I can find is the establishment of names of office—the appearance of a certain man or set of men with a certain name marking them out as objects of obedience, such as ‘King’, ‘Sachem’, ‘Cacique’, ‘Senator’, ‘Burgomaster’, and the like. I think this may serve tolerably well to distinguish a set of men in a state of political union among themselves from the same set of men not yet in such a state.
22. But suppose that a large political society has been formed, and that a small part of it breaks off and ceases to be in a state of political union with respect to the larger, thereby placing itself in a state of nature with respect to the
larger body. How shall we ascertain the precise juncture at which this change took place? What is to serve as the characteristic mark in this case? The appointment of new governors with new names? ·That won’t do, because· the situation may be this:
No such appointment takes place. The subordinate governors from whom alone the people at large were accustomed to receiving their commands under the old government are the same men from whom they receive them under the new one. The habit of obedience that these subordinate governors had with respect to the single person (let’s say) who was the supreme governor of the whole is broken off insensibly and by degrees. The old titles that these subordinate governors had when they were subordinate are continued now that they are supreme.
In this case it seems rather difficult to answer ·my question about the characteristic mark·.
23. For an example of this, let us take the Dutch provinces with respect to Spain. These provinces were once branches of the Spanish monarchy. For a long time now they have been universally spoken of as independent states—independent of Spain as much as of every other ·government·. They are now in a state of nature with respect to Spain. They were once in a state of political union with respect to Spain, a state of subjection to a single governor, who was King of Spain. At what precise time did these provinces cease to be subject to the King of Spain? This, I suspect, will be rather difficult to agree on.1
24. The difficulty is even greater when the defection begins not by •entire provinces (as in the instance of the Dutch) but by •a handful of fugitives, a group that grows
1 I have come to be unsure whether this example is historically exact. If not, that of the defection of the Nabobs of Hindostan may answer the purpose.
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as other fugitives join it and gradually becomes a body of men too strong to be reduced. At what precise juncture did ancient Rome or modern Venice became an independent state?
25. In general, then, at what precise point do persons subject to a government come to be, through disobedience to that government, in a state of nature? When is a revolt to be deemed to have taken place? and when is that revolt to be deemed successful enough to have settled into independence?
26. Just as the obedience of individuals constitutes a state of submission, so their disobedience must constitute a state of revolt. Will any act of disobedience do as much? The answer Yes is not maintainable, because it implies that there is no such thing as government anywhere. Here a couple of distinctions obviously present themselves.
•Disobedience can be conscious or unconscious, with respect to the law as to the fact.1 I don’t think anyone will count as a ‘revolt’ any disobedience that is unconscious with respect to fact or law.
•Disobedience that is conscious with respect to both fact and law can be secret or open, i.e. fraudulent or forcible.2
Disobedience that is only fraudulent will also be readily acknowledged not to amount to a revolt.
27. The remaining difficulty is purely concerned with

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